Friday Links


Only one more week until Captain America: Civil War is released in theatres. We’re excited, as we are sure you are, as well. In fact, we are still recovering from the depressing onslaught of Batman v Superman: Dawn of Justice, so a new Cap film will be a nice change of pace. Perhaps we’ll provide a report of our thoughts on the film next week. In the meantime, above, you’ll find the cover of Civil War #2, published not so long ago in 2006 (which, although a decade ago, was a time a good Cap movie was still unthinkable).

Did you go back and listen to Purple Rain this week? If not, please do so. Of course, Prince didn’t make it very easy to find his songs online, did he? Nothing on Spotify, really. Alas.

Our favorite tweet of the week comes from our own Stuart Mauney (and you can see why we here at Abnormal Use dug it).

Abnormal Use At The South Carolina Bar Employment & Labor Law Midyear Meeting

If you’re in Columbia, South Carolina on May 13, 2016, you can see our editor, Jim Dedman, present to the South Carolina Bar Employment & Labor Law Midyear Meeting. He will be speaking on “Blogging for Lawyers and Related Ethical Issues” (a presentation he has updated to include a number of cases that have arisen in 2016. He will be the final speaker of the day at 3:45 p.m.

The only worry: The seminar takes place on Friday the 13th.

For more information on the seminar (or to register), please click here.

Friday Links


Rest in Peace, Prince. What a sad time, and what a terrible year it has been for the world of music with the loss of Bowie and Prince. We don’t know what to say. So, this weekend, find a moment during which you can pause, reflect, and listen to Purple Rain, Sign O’ The Times, Diamonds and Pearls. or the Prince logo.svg album.

That’s certainly what we here at Abnormal Use are going to do.

Above, you’ll find the cover of Rock N Roll Comics #21, published way, way back in 1991. We knew there had to be a comic book cover honoring Prince.

Oh, and our tweet of the week must address this same sorrowful topic.

Friday Links

Friend of the blog Ryan Steans celebrated his birthday this week. In light of that, we thought we would direct your attention to our 2013 post in which we congratulated Ryan on a decade of blogging. That’s no small feat! He’s run a few blogs over the years, and all of them are quite good. To read our congratulatory post, please click here.

Many thanks to Aaron S. Kirschenfeld of the UNC Law Library blog for his kind words about Abnormal Use. You can read them here.

Our tweet of the week comes from our editor, Jim Dedman, who had an eventful week on social media.

Friday Links


Rest in peace, Merle Haggard.

Okay, so what did everyone think of the Rogue One: A Star Wars Story teaser trailer? Technically, it is a Star Wars prequel, so we remain cautiously optimistic.

Friend of the blog Jill Wieber Lens recently published a new article in the St. John’s Law Review entitled “Product Recalls: Why is Tort Law Deferring to Agency Inaction?” You might recall that we here at Abnormal Use have previously interviewed her, once way, way back in 2010, and again in 2013.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. welcome attorney Gunnar Nistad to the firm. Based in our firm’s Charleston, South Carolina, office, Gunnar is a veteran litigator who has been defending corporations, businesses, and individuals for more than 20 years.

With this week arrived the 22nd anniversary of the death of Nirvana’s Kurt Cobain. Two years ago, our editor, Jim Dedman, authored a post called “The Legacy of Kurt Cobain (A Law Blog’s Perspective.” Take a gander, if you fondly remember the halcyon days of the 1990’s.

Batman v Superman: Dawn of Lawyers

As you know, we here at Abnormal Use oftentimes participate in other projects, and this month is no exception. Our editor, Jim Dedman, recently appeared on The Legal Geeks podcast. The topic? The recent Batman v. Superman: Dawn of Justice film (which, of course, prompted the podcast’s host, Josh Gilliland, to call the episode, “Batman v. Superman: Dawn of Lawyers.” Approximately an hour in length, the episode features a discussion of the film itself, some of its comic book origins, and even some legal analysis (including the power of Congress to regulate the actions of Superman). We encourage you to give it a listen!

Many thanks to Josh Gilliland for his invitation for Jim to participate. You can view The Legal Geeks blog by clicking here.

Last Week’s April Fool’s Day Post

We hope you enjoyed last Friday’s April Fool’s Day post, which was entitled “In ‘Game Of Thrones’ Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin.” It was immensely fun to write, and we hope you enjoyed it. We were pleasantly surprised that the post received some attention, and we even earned a link from The Volokh Conspiracy blog at The Washington Post. Longtime readers may have noticed that we referenced the non-existent “Western District of South Carolina,” which we hadn’t mentioned on the blog since our Star Wars April Fool’s Day post back in 2011.

We know some people aren’t fond of April Fool’s Days posts, but we must confess that they are one of our guilty pleasures.

By the way, in the interests of completism, we present these links to our past April Fool’s Day posts:

Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds” (April 1, 2015).

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law” (April 1, 2014).

North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013).

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012).

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011).

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010).

In “Game Of Thrones” Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin

We here at Abnormal Use remain fans of HBO’s “Game of Thrones,” so it was with great interest that we read this morning’s opinion in McCammon v. Home Box Office, Inc. and George R.R. Martin, No. 15-28712 (U.S. District Court for the Western District of South Carolina, April 1, 2016). Martin, as we all know, is the author of the “Song of Fire And Ice” fantasy novels, upon which HBO’s successful television series, “Game of Thrones,” is based. Over the past twenty years, Martin has released five novels in the series, the first in 1996, and the most recent in 2011. At least two more novels in the series are planned. “Game of Thrones,” the television series, debuted on HBO in 2011. Its sixth season is scheduled to premiere later this month, and the television writers have nearly exhausted all of Martin’s published source material. This, of course, means that the television show is now actually ahead of the narrative in the books (which is a curious thing indeed). We here at the blog have a number of opinions on that development, but today, we write about the federal litigation arising from it.

The factual background: Bill McCammon, a librarian and blogger from Greer, South Carolina, sued HBO and Martin in federal court following the finale of the most recent season of “Game of Thrones” in June of 2015. In so doing, he asserted various causes of action against Martin, including a claim for “negligent artistry,” alienation of affection, and a novel use of laches, which is traditionally an affirmative defense asserted by defendants against plaintiffs accused of unreasonable delay. In the complaint, McCammon further complained that he had “suffered a loss of moral superiority, as his status as a reader of the novels provided him with foreknowledge of the events of the HBO series, thereby distinguishing him from mere watchers of popular television.” Martin’s delay, McCammon contended, cost him that “precious” status. McCammon further contended that HBO was vicariously liable for Martin’s torts in light of their artistic relationship. (Before the court’s order, McCammon abandoned an unrelated claim seeking restitution from HBO for both the cancellation of “Deadwood” and the perpetration of “True Blood.”).

For its part, HBO answered the suit and cross-claimed against Martin for contractual and common law indemnity. Martin, on the other hand, failed to answer the complaint, although he did file multiple pro se motions for extensions of time to do so. His final filing on the docket was a motion for leave to exceed page limitations.

In today’s order, the court granted McCammon’s motion for default judgment against Martin but denied his motion for summary judgment against HBO. Adopting McCammon’s laches theory, the Court observed that “art, unlike molasses, must move quickly, and thus, an artist’s unreasonable delay in releasing a promised work must subject that creator to liability.” (citing In Re: Chinese Democracy Litig., 61 F.3d 21 (W.D. Tex. 2007) (mandating that the rock band Guns N’ Roses release its long overdue album “with all deliberate speed”) and Shearer v. Lewis, 572 S.E.2d 492, 652 (Ga. Ct. App. 2009) (finding that it was “well within the Court’s inherent power to order the release of defendant’s unreleased film, The Day The Clown Cried“)). Thus, Martin was liable to McCammon. In its briefing, HBO attempted to counter that line of authority, citing a number of cases holding that “federal courts should refrain from regulating an artist’s output, lest the artist be forced to release too much material.” (citing Adams v. Adams, 867 F.3d 539 (S.D.N.Y 2006) (invoking the “merciful estoppel doctrine” in granting the singer Bryan Adams’ request for an injunction enjoining the singer Ryan Adams from releasing more than three albums per year); In re: Kanye West Litig., 901 F.3d 42 (S.D.N.Y 2015) (self explanatory). However, the Court found that McCammon’s vicarious liability theory against the premium cable network “constituted a mummer’s farce” and, thus, granted HBO’s motion for summary judgment on those claims. Additionally, the Court granted HBO’s motion for default judgment against Martin, noting the author’s failure to answer and, deciding to reach the merits of the dispute, invoking “the common law rule that litigants with multiple middle initials are estopped to deny indemnity claims arising from works of art.” (citing WingNut Films, Ltd. v. The Tolkien Estate, 721 F.2d 551 (9th Cir. 2002)).

In response to the ruling, Martin, through his literary agent, declined to comment, saying he was too busy working on other projects to prepare a response to the ruling.

GWB Attorney Kyle White Featured in SC Lawyers Weekly Article

Not too long ago, our own Kyle White, a regular contributor here at Abnormal Use, was quoted in South Carolina Lawyers Weekly about the South Carolina statute of repose. Here are the paragraphs in which he is quoted:

Kyle White of Gallivan, White & Boyd in Greenville is not affiliated with this case, but is interested in the litigation, particularly with respect to the statute of repose, as an attorney whose caseload contains a heavy dose of product liability.

“I think what the judge was telling us is that one of the most important considerations is the degree to which the equipment or the appliance or the structure at issue is actually affixed to the real estate,” White said. “And so, without a determination to what extent it is, it’s really difficult to determine whether the item is an improvement for the purpose of the statute of repose.”

The interview was prompted by the release of Murray v. D.R. Horton, Inc., No. 4:15-cv-00191-RBH (D.S.C. December 30, 2015). The article describes the background of the case in some detail.

You can read the full article here.

DRI’s Strictly Speaking Newsletter Seeking Contributions

As you may recall, our editor, Jim Dedman, also serves as the newsletter chair of the DRI’s Product Liability Committee newsletter, Strictly Speaking. As such, he attended the DRI’s Product Liability Conference in New Orleans in February. Because there is some overlap between the readership of Abnormal Use and Strictly Speaking, we thought we would alert you, our dear readers, to a recent call for articles.  Articles for the next edition are of Strictly Speaking are due April 18, 2016. Articles can come in a host of forms: federal or state case summaries, practice tips and pointers, war stories, analysis of regulations, and the like. If you have a particularly compelling story from your own practice which might aid other practitioners, Strictly Speaking is interested. If you would like to submit content, please email Jim with any questions you might have about the enterprise.